Factsheet 17: Discrimination

As a tenant you have rights under the NSW Anti-Discrimination Act 1977 and federal anti­discrimination laws. This factsheet explains the law in NSW about discrimination and tenants' rights.

What is discrimination?

Discrimination means treating someone unfairly because they belong to a particular group of people.

Unlawful discrimination

Discrimination can take many forms, including harassing or treating people unfairly on the basis of their:

• race
• sex
• marital status
• age (includes discrimination due to having children)
• disability (e.g. physical, intellectual or psychiatric)
• sexuality (e.g. trans-sexuality), or
• sexual preference (e.g. homosexuality).

Sexual harassment is where a person makes unwelcome sexual advances or requests to another, or unwelcome conduct of a sexual nature in a situation where such behaviour is likely to intimidate, humiliate or offend.

These types of discrimination and sexual harassment are unlawful due to these laws:

• Racial Discrimination Act 1975 (Commonwealth)
• Sex Discrimination Act 1984 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Anti-Discrimination Act 1977 (NSW).

It is against the law to discriminate against people for any of the above reasons but only in certain circumstances. It is unlawful for a landlord or real estate agent to discriminate against you:

• when rental accommodation is advertised (e.g. an ad that says that people of a particular ethnic group cannot apply)
• when you enquire about the availability of advertised accommodation (e.g. an agent refuses to show a vacant rental property to two unmarried women)
• when you apply for rental accommodation (e.g. by refusing to take your application, placing you lower on a list of applicants, or refusing to rent the premises to you)
• while you are renting accommodation by imposing terms or conditions which are discriminatory (e.g. limiting the people you can invite to visit)
• by ending the tenancy because of your race, sex, marital status, age, disability, sexuality, or sexual preference
• by sexually harassing you in the course of being provided or offered accommodation
• by not giving you all the benefits associated with your accommodation (e.g. you live in flats with a pool and are not allowed to use the pool because you have a child with disability).

Exceptions

Whether it is unlawful to discriminate in shared accommodation depends on the type of discrimination and whether you are living with the owner or their close relative and how many people you are sharing with.

Under the Racial Discrimination Act 1975, an act is not unlawful in relation to accommodation if sharing with the owner or their close relative.

Under the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992, an act is not unlawful in relation to accommodation:

• if sharing with the owner or their close relative, or
• if it is for no more than three people.

Under the Anti-Discrimination Act 1977, an act is not unlawful:

• if the tenant is sharing with the owner or their close relative, or
• if the accommodation is for no more than 6 people.

It is not unlawful to discriminate if the accommodation is designed to meet the needs of particular groups (e.g. women, older persons, youth).

If you are discriminated against

If you believe you have been discriminated against, you can make a complaint to the Anti–Discrimination Board of NSW (ADB) or the Australian Human Rights Commission (AHRC).

You have 6 months to make a complaint to the ADB and 12 months to make a complaint to AHRC. Contact the ADB or AHRC for up-to-date advice about how to make a complaint and the time it will take to sort it out.

ADB staff can help to put your complaint in writing. The ADB can also deal with complaints urgently, if necessary.

You can also contact your local community legal centre for legal advice.

The complaints process

Written complaints to the ADB are investigated by a conciliation officer. They may ask you for more written information, or talk to you by phone or in person. They will ask the landlord or real estate agent to respond to your complaint.

If the ADB finds that you have been discriminated against, there will be a conciliation conference where both sides meet with the conciliation officer to try to work out a solution to the complaint. This may include a written apology and/or compensation.

If you cannot come to an agreement, the matter may be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal of NSW for more formal proceedings.

AHRC has a similar process. If you cannot come to an agreement, the matter may go to the Federal Magistrates Court for more formal proceedings.

Asking for guarantors is illegal

Some agents and landlords ask tenants to put someone else's name on the residential tenancy agreement as a guarantor in case the tenant fails to meet the terms of the agreement.

It is illegal under the Landlord and Tenant (Rental Bond) Act 1977 to ask for a guarantor. It can also be discriminatory.

Tribunal proceedings

Consumer, Trader and Tenancy Tribunal procedings do not take unlawful discrimination into account.

Contacts

• Anti-Discrimination Board of NSW: phone 02 9268 5555 (Sydney), 02 4224 9960 (Wollongong), 02 4926 4300 (Newcastle), free call 1800 670 812
• Australian Human Rights Commission: phone 1300 656 419, TTY 1800 620 241, email complaintsinfo@humanrights.gov.au
• Community legal centres: phone 02 9212 7333 or see www.nswclc.org.au/clcs.html for your local centre

Updated: June 2009

Further help

• Your local Tenants Advice and Advocacy Service: www.tenants.org.au/publish/contact-us
• Other factsheets: www.tenants.org.au/publish/factsheets
• NSW Fair Trading Information Centre: 133 220

The information in this factsheet:
• is intended as guide to the law and should not be used as a substitute for legal advice
• applies to people who live in, or are affected by, the law as it applies in New South Wales, Australia.
© Tenants' Union of NSW.